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Full-Text Articles in Law
Regulatory Reform: Assessing The California Plan, Marsha N. Cohen
Regulatory Reform: Assessing The California Plan, Marsha N. Cohen
Duke Law Journal
California enacted an extensive regulatory review plan in 1979 which established the criteria of necessity, authority, clarity, consistency, and reference for all existing and future regulations. It created the office of Administrative Law (OAL) in the executive branch to enforce compliance with the new standards, and adopted procedural modifications to the state's rulemaking scheme. In this article, Professor Cohen analyzes the California plan and its application during the first two years of the OAL's existence. She concludes that the procedural reforms are generally sound, although in some aspects impose excessive controls on agencies. In contrast, she finds troubling the plan's …
Making Agencies Follow Orders: Judicial Review Of Agency Violations Of Executive Order 12,291, Peter Raven-Hansen
Making Agencies Follow Orders: Judicial Review Of Agency Violations Of Executive Order 12,291, Peter Raven-Hansen
Duke Law Journal
When, if at all, should courts make agencies follow the President's "personal" policies declared in non-statutory executive orders? Professor Raven-Hansen here seeks an answer by making the case for general judicial enforceability of Executive Order No. 12,291, which requires regulatory impact analysis of major rules. He concludes that a non-statutory executive order which is not mere housekeeping can bind agencies under the principle that they must follow their own rules, but that the committal of enforcement to executive discretion is often a serious obstacle to judicial enforceability. Whether such discretion bars judicial review altogether or only narrows the scope of …
Review Of “Jurisdictional” Issues Under The Bumpers Amendment, Ronald M. Levin
Review Of “Jurisdictional” Issues Under The Bumpers Amendment, Ronald M. Levin
Duke Law Journal
The proposed Bumpers Amendment to the Administrative Procedure Act would encourage courts to be less deferential than they have previously been toward federal agencies' views on issues of law. With regard to "jurisdictional" questions, the amendment would go further: it would invite courts not only to assert their independence, but also to disfavor agencies' positions. Professor Levin regards this special rule of construction for jurisdictional questions as an attempt to achieve deregulation through judicial review. He criticizes this strategy as poorly conceived and calls attention to several weaknesses in the draftsmanship of the jurisdiction provision.